The announcement came hours after the Council on American-Islamic Relations asked the Pentagon to remove the target. A picture of the cardboard target, which shows a woman in a headscarf holding a pistol, was published in The Virginian-Pilot on Tuesday. The image shows verses of the Quran hanging on the wall behind the woman, which also generated criticism from the group.

But the more important basis for second thinking is that when you get to Liberman's old post, you find out that Romney didn't even speak those words. Mark Steyn did, and he was purporting to paraphrase Romney, for humorous effect. Pullum found out he was laughing at Steyn and Steyn was trying to make us laugh, and suddenly the quote wasn't funny anymore. Pullum, the liberal, was initially enjoying laughing at Romney — and his vapid dorkiness — and then he found out he was laughing at something a big right-winger — Steyn — had intended as a joke. Hey, that's not funny!

Pullum regains his sense of self-liberalism and goes into 4th of July mode:

It's nearly the 4th of July.... I love being back in America. It's like slipping into an old pair of shoes that really fit.... I don't think I can find anything mistaken in the passage. I think I believe in that America too. God bless it, anyway.

His post ends with a note that it's completely rewritten, because he apparently had originally assumed Romney did say those words, hadn't seen Liberman's old post, and went the mockery.

Via James Taranto, who tweaks the scientists as having "lonely lives" (since they are resorting to tickling rats). But I think it means something, if animals laugh — if they play and have fun — and it's not all survival instinct.

Note that the rats don't just laugh, they latch on to The Hand as a playmate and chase it around, eager to engage it in more fun times.

But in court — the message is — we look through the surface and see what is really happening. And if it is structured and functions like a tax, it's a tax.

You know, there's a saying that lawyers and lawprofs like. I think it's corny, so I haven't been saying it. I don't think that in 25+ years of teaching law I've ever said it, but I've heard it said so many times, and it's said because it's a way of saying something that lawyers and lawprofs really think about law: If it walks like a duck and quacks like a duck, it's a duck.

Suri is apparently treated as an adult, free to make decisions on her clothes, make-up and diet.

Scientology expert Rick Ross explained to the Daily Mail's Alison Boshoff last year: 'Scientologists treat kids as if they are individuals capable of making their own decisions.'

Indeed, Tom echoed this approach in an interview in 2010.

'I say to Suri, "I really want you to eat this protein if you’re going to have that sugar,"' he said.

'She looks at me and she goes: "Dad, I don’t think you should try to force me to do something I don’t want to do."'...

Just last week, an evening of pizza and ice-cream with her mother ended in tears when Katie took her daughter's cone away.

If we assume, for the purposes of discussion, that Cruise follows a religion-based approach to child rearing, involving maximum autonomy, and Holmes now objects to that and wants to raise the child according to more conventional decision-making and discipline by the parent, how much of a factor should that play in determining custody? Should Cruise's ideas about child-rearing have more weight or less weight because they are premised on religion?

"There has been tons of speculation in the last day that Chief Justice Roberts changed his vote at some late stage in the Affordable Care Act case," writes Orin Kerr, linking to his Volokh co-blogger David Bernstein's 2posts on the tantalizing meme. Kerr looks at the evidence and speculates about how the complexity of the writing project could have unfolded without Roberts ever switching sides. He was the 5th vote in 2 majorities, one with the liberal 4 and one with the conservative 4:

Roberts is the swing vote in this case and this is the biggest case of his time on the Court, so he quite naturally assigns the opinion to himself....

"Overall, there were few differences in the topline results between the two nights. However, there were sizable partisan shifts. On Wednesday night, Republicans tended to give the court good ratings, while Democrats were evenly divided between good/excellent and poor. On Thursday night, the partisan positions were reversed."

Well, nothing changed for me. I've never watched any of those chirpy morning shows. But I do see something surreal at the link: a video of a "body language expert" purporting to "decode" the movements of the arms and legs of a tearful Ann Curry on her last "Today."

The Supreme Court's decision removes the coercion of the Medicaid expansion. The states no longer face losing all their Medicaid funding. But will they opt out? They are still tempted by federal money, just not as much money. Here are the states that joined the argument against the law:

They failed to get the entire new program stricken down, so there's still a decision whether to opt in. Since the most coercive aspect of the program is gone, it's now a harder decision to make.

The federal government will pick up the entire cost of the expansion for the first three years. After that, it will pick up 90% of the cost and leave the remaining 10% to states. While that leaves only a small share for states, many have argued even that's too much given their tight budgets.

Several states said Thursday that, despite the ruling, they have no plans to opt out of the expansion. Washington state, which was a plaintiff in the Supreme Court lawsuit, said it will likely take the new federal money and expand its Medicaid program to about 500,000 residents in 2014. "That is the best bargain one can buy," said Democrat Gov. Christine Gregoire, who objected to the state Republican attorney general's decision to join the lawsuit. "I can't imagine who would say we aren't going to do this new Medicaid program."

So the truly heavy-handed coercion is gone, but the enticement that is left is still highly persuasive.

The unexpected culprit is a gene mutation that occurred by chance and that was discovered by tomato breeders. It was deliberately bred into almost all tomatoes because it conferred an advantage: It made them a uniform luscious scarlet when ripe.

Now, in a paper published in the journal Science, researchers report that the very gene that was inactivated by that mutation plays an important role in producing the sugar and aromas that are the essence of a fragrant, flavorful tomato.

There's material throughout his opinion — which I've highlighted in my various posts today — that calls attention to the flawed mechanisms of the universal-health-coverage scheme. Most notably, the individual mandate is only constitutional because it's optional, and people can simply pay the "penalty" (now known as the tax) to the federal government as long as they don't want to buy health insurance. If people behave rationally and weigh the costs against the benefits, they won't buy insurance until their expenses (health care costs + the penalty) exceed the premiums, and the insurance companies will not amass premiums from the vast numbers of healthy people who pay in more than they receive. It seems like a design for collapse, but, as Roberts says: That's not his concern.

AND: To say it's a "design for collapse" is to set up the question whether it was a screw-up or whether it was the first move in a scheme to take us to a single-payer, government health care program.

MORE: This calls to mind the old Pelosi quote:

"But we have to pass the bill so that you can find out what is in it."

After going through the Commerce Clause, the Necessary and Proper Clause, and the Spending Clause, I'm finally going to read the taxing power part of the new case — which, by the way, is called National Federation of Independent Business v. Sebelius.

This is the part where a 5-person majority upholds the individual mandate. Chief Justice Roberts writes, joined by Justice Ginsburg, Breyer, Sotomayor, and Kagan. The 4 liberal Justices did not agree with him in the Commerce Clause part of his opinion, III-A, so they also don't join III-B, which is the transition from the Commerce Clause to the taxing power discussion. In III-B, Roberts tells us that we need to shift from thinking about the individual mandate "as ordering individuals to buy insurance, but rather as imposing a tax on those who do not buy that product." The government argued for reading the statute one way — as a requirement — but that led to viewing it as unsupported by the only enumerated power that might have supported it, the commerce power. So we shift to the other alternative — the mandate as a device for identifying who owes a tax. He's choosing to read the mandate in the way that allows it to be supported by another enumerated power, the taxing power.

It was the first time in American history that Congress has imposed that sanction on a sitting member of a president’s cabinet."

The vote – 255 to 67, with one member voting present – followed an acrimonious and politically charged debate. Many Democrats walked out of the chamber in protest without voting, accusing Republicans of railroading the motion so they could inflict political damage on the Obama administration during an election year.

From SCOTUSblog. "The bottom line: the entire ACA is upheld, with the exception that the federal government's power to terminate states' Medicaid funds is narrowly read." From CNN: Blitzer says "let's take a deep breath... if you're watching this on Twitter... momentous... more information...."

CNN was fumbling and blathering. I guess they have to fill every second of real time. A live blog seems as though it's real-time, but the participants have the ability to read something and study it without writing anything. But that's not enough of an excuse for the TV news failure. They need one person to talk, but several others could be quickly reading parts of the opinion and ready to go on camera when they have something to say.

I'm still annoyed at CNN for wasting my time — and playing with my emotions — back on June 5th when the polls closed in the Wisconsin recall election and they were insisting that the race was too close to call. It's razor close. After an hour of such hand-wringing, they call it for Walker, and in the end, he wins by 7 percentage points.

Fox News got it wrong too, it should be noted. Both today and on June 5th.

Let's look at what Chief Justice Roberts writes about the spending power. (This is Part IV of his opinion, which is joined only by Breyer and Kagan. The rest of the votes for limiting the spending power come from Scalia, Kennedy, Thomas, and Alito.)

The issue here is raised by states that said that the Medicaid expansion wasn't merely a condition on spending, but "coercion." It's well established that Congress can't "compel the States to enact or administer a federal regulatory program," Roberts said, but Congress can offer money on the condition that they do what Congress could not compel. The states have a choice. But when is a choice not a choice? When it's compulsion.

This is an important opinion about federalism and the scope of Congress's enumerated powers. Even as the individual mandate was upheld under taxing power — and Roberts wrote about the expansiveness of that power — we have an opinion that is limiting those other 2 powers. I want to begin to talk about the Chief Justice's contribution to constitutional law as he writes about these 2 powers.

Let's not be distracted by the breadth of the taxing power. The American people exert tremendous political power against taxing. Look at the Tea Party. A political price will be paid — both for the tax and the deceit about imposing a tax.

What I want to do first, now that I have my hands on the opinion, is analyze the Commerce Clause doctrine.

OBAMA: No. That's not true, George. The — for us to say that you've got to take a responsibility to get health insurance is absolutely not a tax increase. What it's saying is, is that we're not going to have other people carrying your burdens for you anymore than the fact that right now everybody in America, just about, has to get auto insurance. Nobody considers that a tax increase. People say to themselves, that is a fair way to make sure that if you hit my car, that I'm not covering all the costs.

I have said repeatedly that Obama would be worse off if Obamacare were upheld, but what I'm really seeing is how bad it is for him with the mandate declared a tax.

Remember the Democrats got the statute passed by insisting it was not a tax. Now, we learn it is only constitutional because it is a tax. That's got to hurt politically.

ADDED: Romney has at least 3 big arguments:

1. Obama imposed a huge new tax on working people.

2. Obama deceived the American people by saying it was not a tax, when it was.

3. The law made it look like money would go to insurance companies — in the form of new premiums — that would keep premiums low as the companies were required to take on people with pre-existing conditions, but now we find out that the money is really going to go to the federal government. [ADDED: So get ready for your premiums to spiral up and/or for insurance companies to be ruined.]

CNN is running on the Commerce Clause ground, apparently, and not seeing the tax power part.

At SCOTUSblog: "So the mandate is constitutional. Chief Justice Roberts joins the left of the Court."

UPDATE: John King on CNN is starting to walk back. Wolf Blitzer notes "conflicting reports from in there."

UPDATE 2: From SCOTUSblog. "The bottom line: the entire ACA is upheld, with the exception that the federal government's power to terminate states' Medicaid funds is narrowly read." From CNN: Blitzer says "let's take a deep breath... if you're watching this on Twitter... momentous... more information...."

UPDATE 3: CNN reporter showing what a big, long opinion it is — holding it up, flipping through the pages. Finally, at 9:15, she says the entire law has been upheld.

UPDATE 4: Note the important political effect of saying it's a tax (and not an exercise of the power to regulate under the Commerce Clause): People don't like taxes. Obama and the Democrats imposed a huge new tax, affecting middle class people. Wolf Blitzer calls this "a huge huge victory for President Obama," but it will be used against him, and the tax ground means a lot.

The money quote from the section on the mandate: Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.

UPDATE 5: Based on CNN, which I don't trust, it's a 5 to 4 decision, and Chief Justice Roberts, not Justice Kennedy, was the deciding vote.

UPDATE 6: From SCOTUSblog: "The court reinforces that individuals can simply refuse to pay the tax and not comply with the mandate." Hmmm. I think that might be misstated. I'm guessing SCOTUSblog meant to say that individuals can simply refuse to comply with the mandate — i.e., buy insurance — and pay the penalty — which is accepted as a "tax" within the meaning of the taxing power. [ADDED: My guess there is correct, as SCOTUSblog has now noted.]

UPDATE 7: I still don't have the opinion, but the Commerce Clause discussion comes out on the conservative side, and that will be important doctrine. Now, possibly they simply talk about the difficulty of the Commerce Clause question and then refuse to resolve it, switching to the taxing power issue.

UPDATE 8: The spending power material about the states and Medicare is also important. Per SCOTUSblog: "The Constitution requires that states have a choice about whether to participate in the expansion of eligibility; if they decide not to, they can continue to receive funds for the rest of the program." This probably is an important new contribution to the doctrine about conditional spending, that Congress can't attach a new condition to old spending as it entices the states to agree to something they can't otherwise be required to do. That makes it much harder to lure the states into accepting conditions.

UPDATE 8: In Update 7, I said I couldn't assume that there was a resolution of the Commerce Clause issue, but I see now that there are 5 votes saying the Commerce Clause does not support the individual mandate, and: "The power to regulate commerce presupposes the existence of commercial activity to be regulated."

"This has nothing to do with not going to the convention to send a message to the president, nothing of the sort. This has to do with maximizing the time you spend connecting with your constituents..."

Even if that were true, the appearance of trying to distance themselves from Obama is bad enough to provide an incentive to sacrifice a bit of time connecting with constituents in order to demonstrate support. So, obviously, Van Hollen is bullshitting.

In the old days, craftsmen did not cut corners. They worked carefully, and they took care with every aspect of their work. Every part of the product was considered, and each was designed and made to be exactly as it should be. These craftsmen did not relax their thoughtful self-discipline even with respect to features of their work that would ordinarily not be visible. Although no one would notice if those features were not quite right, the craftsmen would be bothered by their consciences. So nothing was swept under the rug. Or, one might perhaps also say, there was no bullshit.

I'm re-distracted back to the Supreme Court case. I wonder how good the judicial craftsmanship will be. Will there be bullshit?

Wittgenstein once said that the following bit of verse by Longfellow could serve him as a motto:

In the elder days of art
Builders wrought with greatest care
Each minute and unseen part,
For the Gods are everywhere.

No, no, no. It's not just filler. It's the last amazing thing that was finally realized, on the Eve of Destruction — or Non-Destruction or Semi-Destruction — and needed to be published right now — quick! link! read! — for the edification of the American people.

5. "We don't know what will happen this morning. But no matter what, today is an important day to have Barack Obama's back." Email just now from the Obama campaign. Because everything is an occasion for giving money to Obama. Especially this. Transmogrify your tears of regret — or relief! — into cash for Obama.

9. What do I actually think? Should I after all this time reveal whether I think the individual mandate is constitutional? We're about to hear what the Supreme Court thinks, so what does it matter what I think? It's emphatically the province and duty of the Judicial Department to say what the law is. That's what I think. Now, if they go 5-4, liberal-conservative or conservative liberal, The Law will not have the awesome solidity We, The Children want it to have, but I'm not going to cry about it. I'm old. And I've been watching the Supreme Court for a long, long time. It's 9 human beings — could be 19, but it's 9 — trying to do something serious and complicated.

10. Oh! It's so exciting! Let's watch it unroll at the SCOTUSblog live blog, where the venerable Lyle Denniston is saying "Good morning from a slightly zoo-like, but still surprisingly civil, press room at the Court."

A mere accident, purportedly. And it only affected Facebookians who failed to identify with a party or ideology that had its own Facebook page. So if you individualized your political orientation — calling yourself, say, "a recovering bleeding heart" or a "sniveling democrublican" or some such outré invention — that might have been obliterated.

I'm guessing Facebook is working on getting individual pages to link up in various "social network" ways within the Facebook website. I'm assuming it's all for the business interests of Facebook. But perhaps the company is trying to help political parties (and causes) organize and communicate. All this idiosyncratic nomenclature cuts off the pathways of power.

This makes me wonder what I have on my Facebook page. Oh, I see. I wrote: "read my blog." But now what it says is "Other" on a separate line before what I wrote. And "Other" is hot-linked to a Facebook page for "Other," where the content is lifted from the Wikipedia article "Other":

The Other or Constitutive Other (also the verb othering) is a key concept in continental philosophy; it opposes the Same.

"Same" and "continental philosophy" are hot-linked to other Facebook pages. So lots of linkage, plus the insane idea that I have identified myself with some damned continental philosophy concept!

The Other refers, or attempts to refer, to that which is other than the initial concept being considered. The Constitutive Other often denotes a person Other than one’s self; hence, the Other is identified as “different”; thus the spelling often is capitalized.

That's rich. And actually, accidentally sort of true, since I'm keeping out of all the established political identifications. But I don't need Facebook insinuating that I'm somebody else's not-self.

A person's definition of the 'Other' is part of what defines or even constitutes the self (in both a psychological and philosophical sense) and other phenomena and cultural units. It has been used in social science to understand the processes by which societies and groups exclude 'Others' whom they want to subordinate or who do not fit into their society.

I am Facebook's Other! I am what Facebook wants to subordinate because I do not fit into its society/social network.

(By the way, I'm not looking for Facebook friends, so please don't ask.)

Labor unions hoped to turn the Wisconsin recall election into a rallying cause for their ailing movement. But a Democratic president couldn’t be dragged off the sidelines for the fight.

And let me add that even the Democratic candidate in that election avoided talking about labor union matters. Tom Barrett talked — with stunning blandness — about a restoration of civility and working together.

When you get a few paragraphs into the long article, you'll see it's mostly complaints about the dynamics of campaign finance with lots of quotes from people Martin counts among the few "unapologetic populists" left in the party. But there's this nice summary:

Many young women also feel guilty or distressed over their low libido....

So... you're so stressed about work that you don't have sex, and then you're stressed about not having sex. Stress! Stress! Stress! What do you think about all this stress as the cause and the effect of not having sex? It strikes me as a shallow and lame explanation for things.

I tend to think that the reason people are doing whatever they are doing is because it's what they want to do. There's something irrational about saying I don't want to do what I don't want to do. Or, to turn it around, I want to want something. If you want it, you want it. If you don't, you don't. Start there. Too busy? Hopeless!

"Yet our pres­ence didn’t seem to mat­ter to any­one, cre­atively or oth­er­wise. And any­way, Madison’s economy was hum­ming along with unem­ploy­ment around four per­cent, while back in fun, cre­ative Port­land, it was more than twice that, at eight and a half per­cent. This was not how the world accord­ing to Florida was sup­posed to work. I started to won­der if I’d mis­read him. Around town I encoun­tered a few other trans­plants who also found them­selves scratch­ing their heads over what the fuss had been about. Within a cou­ple years, most of them would be gone."

From "The Fall of the Creative Class," by Frank Bures. "Florida" is Richard Florida, author of "The Rise of the Cre­ative Class," who theorized that artists (and gay people and immigrants) cause economic growth, so a city that wants economic expansion ought to adopt a strategy of attracting artists.

June 26, 2012

In the late 1960s Ms. Ephron turned to magazine journalism, at Esquire and New York mostly. She quickly made a name for herself by writing frank, funny personal essays — about the smallness of her breasts, for example — and tart, sharply observed profiles of people like Ayn Rand, Helen Gurley Brown and the composer and best-selling poet Rod McKuen. Some of these articles were controversial. In one, she criticized Betty Friedan for conducting a “thoroughly irrational” feud with Gloria Steinem; in another, she discharged a withering assessment of Women’s Wear Daily....

Her first screenplay, written with her friend Alice Arlen, was for “Silkwood,” a 1983 film based on the life of Karen Silkwood, who died under suspicious circumstances while investigating abuses at a plutonium plant where she had worked...

Ms. Ephron followed “Silkwood” three years later with a screenplay adaptation of her own novel “Heartburn,” which was also directed by Mr. Nichols. But it was her script for “When Harry Met Sally,” which became a hit Rob Reiner movie in 1989 starring Billy Crystal and Meg Ryan, that established Ms. Ephron’s gift for romantic comedy...

[She wrote] “Sleepless in Seattle” (she shared the screenwriting credits), which brought Tom Hanks and Meg Ryan together so winningly that they were cast again in “You’ve Got Mail.”

A woman of our time. It's sad to lose her. I wish the obit (in the NYT) had a bunch of links to old magazine articles and to movie clips. The article about Ayn Rand is in "Wallflower at the Orgy." There's also: "Scribble Scrabble,""Crazy Salad,""I Feel Bad About My Neck," and "Heartburn," which is the one about the breakup of her marriage to Carl Bernstein, which was made into a movie with Meryl Streep and Jack Nicholson. Here's a little clip of the 2 greatest actors of our time enacting the scenes of Ms. Ephron's marriage:

Let's sing all of the songs we know about babies....

ADDED: I just downloaded "Wallflower at the Orgy" to get the Ayn Rand essay, which begins:

Twenty-five years ago, Howard Roark laughed. Standing naked at the edge of a cliff, his face gaunt, his hair the color of bright orange rind, his body a composition of straight, clean lines and angles, each curve breaking into smooth, clean planes, Howard Roark laughed. It was probably a soundless laugh; most of Ayn Rand’s heroes laugh soundlessly, particularly while making love. It was probably a laugh with head thrown back; most of Ayn Rand’s heroes do things with their heads thrown back, particularly while dealing with the rest of mankind. It was probably a laugh that had a strange kind of simplicity; most of Ayn Rand’s heroes act with a strange kind of simplicity, particularly when what they are doing is of a complex nature.

Beautiful! Twenty-five years ago... that was was written in 1968.... 69 years ago...

Says Instapundit, pointing to this poll that says most people would be happy to see the Court strike down the law and saying it's Congress and President Obama who should be seen as "delegitimized" because of the way they "rammed it through using shady procedures in the teeth of popular opposition." And tweaking lawprof Akhil Amar for his life-is-a-fraud hyperventilating.

Also, earlier today, Instapundit linked to my response to to Jonathan Turley's personal attack on me. Turley couldn't take my criticism of his Court-packing plan, and Instapundit had his own (amusing) Court-packing plan: Let's have term limits (18-years) and a requirement that no more than 5 of the 9 to be law school graduates.

In the first post of the day — "Jonathan Turley's civility bullshit about my calling 'bullshit' on his Court-packing plan" — I said some things about why I don't give powerful speakers the insulation of so-called "civility" and about the interplay between big journalism and the law professoriat. Not wanting to go unbloggily overlong, I said I'd do a second post parsing the details of Turley's blog post criticizing me for criticizing his proposal to enlarge the Supreme Court to 19 Justices. I call it...

Oh, how painful it was for Adam Schabow when — twice! — Tom Barrett's people stuck their sign in his yard! He hates Scott Walker, but the presumption and the intrusion was just very horrible for him.

"I wanted a 'Recall Walker' sign. 'Cause mine got stolen a couple of weeks earlier. The whole thing was very convenient for me. But they didn't know that. So they shouldn't've been messin' around on my lawn."

Even liberals say get off my lawn.

IN THE COMMENTS: Pogo wrote:

His lawn?"His" lawn??

There is nobody in this country who got a lawn on his own — nobody.
You grew some grass out there? Good for you.

But I want to be clear. You moved your grass seed on the roads the rest of us paid for. You hired lawn care workers the rest of us paid to educate. You were safe in your house because of police-forces and fire-forces that the rest of us paid for. You didn’t have to worry that marauding bands would come and seize everything on your lawn — and hire someone to protect against this — because of the work the rest of us did.

The woman doing the firing is a sharp-profiled, sharp-suited corporate leader who has busted chops in the male-dominated world of construction — “The Devil Wears Prada” and a hard hat. Her name, Helen E. Dragas, even sounds Hollywood...

The woman who was fired — and whose reinstatement students and faculty are rallying behind — is U-Va.’s first female president, Teresa Sullivan. She is a beloved, bespectacled professor and respected scholar in a softer discipline — sociology — and was admired for her quiet advocacy of women and open-door policy toward students. She zips around campus in her Smart car and teaches a sociology class....

It is difficult to understand exactly why Dragas called for Sullivan’s resignation....

That’s why the Queen Bee scenario seems to make so much sense here....

Jonathan Turley seems hurt that Ann Althouse and other conservative academics acted in a way that shows “we have lost the tradition of civil discourse in this country.” Yeah, umm, Professor Turley, perhaps you didn’t read the footnotes, but here on the internet we don’t have a tradition of civil discourse. We do have a tradition of ad hominem attacks, hyperbole, and pictures of cats.

Obviously, Professor Turley doesn't enjoy my fun-loving, bloggy approach to his professorly musings and proposals. It's not what he's used to, and it's not what the Washington Post is hoping for when it publishes all those op-eds from law professors to launder its partisan politics into something with that looks scholarly and thoughtful. These lawprofs who experience the inflation of elite media publication — and I've been there — do not want other lawprofs tweaking and puncturing them. It might seem that I'm just crossing a line and being unprofessional or insufficiently submissive when I call bullshit — and in this case I literally called bullshit. ("Oh, spare me the bullshit.")

What I'm doing might seem careless and lightweight. But I am passionate and serious about what I am doing, which is about speaking clearly and showing you things you might not be able to see. Most law professors write for other law professors (as well as elite media and powerful politicians). In this enterprise of career building, they cultivate and trade on respect. Most law professors accept this discipline, because they imagine it's in their self-interest, and it actually is. In this game, I'm a big outlier. I call out the lawprofs, and I've been doing it a lot lately, because —in advance of the health-care decision — the big newspapers have been publishing a lot lawprof op-eds. (By the way, did you know that "19 of 21 constitutional law professors who ventured an opinion" — and who were elite enough to be polled by Bloomberg — said the law is constitutional?)

In a later post, I'll respond to more of Turley's long, professorly post which denies that his Court-packing plan arises out of a distaste for the Supreme Court's opinions. In the bloggerly tradition, I'm keeping this post short and clear. My point is: I'm about clear speech, telling the truth, starting conversations, and having some fun. I'm not about being nice to powerful speakers.

And I'm really not about getting pushed back with calls for "civility." As you know if you're a regular reader of this blog, my tag for this subject has long been "civility bullshit." So this is another post with the "civility bullshit" tag — and it's one where someone used civility bullshit against me for saying "bullshit."

***

Here's a cool book on bullshit called "On Bullshit." It's by a professor! ("One of the most salient features of our culture is that there is so much bullshit. Everyone knows this. Each of us contributes his share. But we tend to take the situation for granted.")

June 25, 2012

Using "coup" in the headline implies things I don't mean. Through the past decade, there has been a radical shift in the "by any means necessary" rules of political combat, as I describe. Previous conservative administrations have nominated previous conservative Justices — but not radical partisans, happy to overthrow precedent to get to the party-politics result they want.

Fallows' piece is embarrassingly hysterical, with or without the new title.

ADDED: At the link at the link, there's talk of Tilted Kilt, whose CEO Rod Lynch who complains that the word breastaurant "implies that the company's success is based purely on sex appeal."

Rose Dimov, a 22-year-old waitress at Tilted Kilt, says her job is no different from any other waitressing gig; make guests feel special and ensure they have a good time. As an aspiring ballroom dancer, she also says she's not fazed by the revealing outfit that comes with the job. "Going to a restaurant should be an experience," Dimov says. "We're entertainers."

"Our Eighth Amendment case law is now entirely inward looking," writes Justice Alito, dissenting today in Miller v. Alabama — PDF — which declared it mandatory life imprisonment to be "cruel and unusual" punishment when imposed on a juvenile.

Unless our cases change course, we will continue to march toward some vision of evolutionary culmination that the Court has not yet disclosed.

Writes Amy Howe, covering the Supreme Court live at SCOTUSblog. Scalia is speaking in connection with his dissenting opinion in Arizona v. United States — PDF — but this new development isn't part of the case.

ADDED: Here's the relevant material from Scalia's dissenting opinion:

It has become clear that federal enforcement priorities—in the sense of priorities based on the need to allocate “scarce enforcement resources”—is [sic] not the problem here.

After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants under the age of 30.

"... or, at least, its application in this case. But given the Court’s per curiam disposition, I do not see a significant possibility of reconsideration."

Writes Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, dissenting from the Supreme Court's summary reversal of the Montana Supreme Court's decision, which — as the majority put it presented the question "whether the holding of Citizens United applies to the Montana state law":

There can be no serious doubt that it does. Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case.

So what's the problem? What's the issue? Why is this a story? The presumption seems to be that because Apple makes so much money, it ought to redistribute more of it to the people who happen to work in the stores. But why?

Much of the debate about American unemployment has focused on why companies have moved factories overseas, but only 8 percent of the American work force is in manufacturing, according to the Bureau of Labor Statistics. Job growth has for decades been led by service-related work, and any recovery with real legs, labor experts say, will be powered and sustained by this segment of the economy.

And as the service sector has grown, the definition of a career has been reframed for millions of American workers.

“In the service sector, companies provide a little bit of training and hope their employees leave after a few years,” says Arne L. Kalleberg, a professor of sociology at the University of North Carolina. “Especially now, given the number of college kids willing to work for low wages.”

Are you seeing the issue? There's some idea that these college-kid jobs need to be turned into careers... because... people need careers?

“It’s interesting to ask why we find it offensive that Wal-Mart pays a single mother $9 an hour, but we don’t find it offensive that Apple pays a young man $12 an hour,” [said Paul Osterman, a professor at M.I.T.’s Sloan School of Management]. “For each company, the logic is the same — there is a line of people eager to take the job. In effect, we’re saying that our value judgments depend on the circumstances of the employee, not just supply and demand of the labor market.”

It's interesting that we're not offended by even more things. That's assuming that you were already offended that sales workers at Wal-Mart only get $9 an hour. But why is that offensive? I don't get Osterman at all. He's trying to shift us from thinking about which people we have empathy for to which companies we feel hostility toward.

ADDED: Here's a SCOTUSblog post clearly stating the issues in the remaining cases. That post is from last Wednesday, so it includes a few cases that were decided last Thursday. There are 6 more cases to be announced, but it's unlikely that all will be announced today, even though today is the last scheduled day for announcing opinions. There will probably be another day later this week.

UPDATE: "Montana campaign is summarily reversed, five to four." So... the occasion for reconsidering Citizens United is over. [Here's some background on the Montana case, where the state supreme court had a decision which did not give adequate respect to Citizens United.]

UPDATE 2: "The Court holds that the Eighth Amendment forbids a scheme of life in prison without possibility of parole for juveniles." A 5-4 decision, written by Justice Kagan. Justice Alito writes the dissenting opinion. "[I]t is relatively rare for a Justice to read a dissent from the bench but not unheard of."

UPDATE 3: The 9th Circuit is reversed in part and affirmed in part in Arizona v. United States. "Most of the key provisions of SB1070 (3 of 4) are invalidated. One provision is held not to be proved preempted; it must be construed.... The provision that the Court says is not yet preempted is the 'check your papers' provision that commands officers to check immigration status."

We're all wound up waiting for the Supreme Court to announce its new decisions this morning, so let me while away some of the remaining minutes brooding about that WaPo article we were talking about last night. Let's talk, specifically, about Turley's homing in on the number 19.

Wikipedia has an article on the number 19, which includes mathematical info like "19 is the aliquot sum of two odd discrete semiprimes, 65 and 77 and is the base of the 19-aliquot tree." And "19 is a centered triangular number, centered hexagonal number and a Heegner number" — which looks like this:

That red dot could be John Roberts.

There's also significance to the number 19 in the religions Islam and Baha'i:

The number of angels guarding Hell ("Hellfire") according to the Qur'an: "Over it is nineteen" (74:30).

The Number of Verse and Sura together in the Qur'an which announces Jesus son of Maryam's (Mary's) birth (Qur'an 19:19).

Some people have claimed that patterns of the number 19 are present an unusual number of times in the Qur'an.

In the Bábí and Bahá'í faiths, a group of 19 is called a Váhid, a Unity (Arabic: واحد wāhid, "one"). The numerical value of this word in the Abjad numeral system is 19.

The Bahá'í calendar is structured such that a year contains 19 months of 19 days each (along with the intercalary period of Ayyám-i-Há), as well as a 19-year cycle and a 361-year (19x19) supercycle.

I don't know what put the idea of 19 into Jonathan Turley's head. It could be something mystical and nutty. Maybe he loves Adele's first album.

But I assume there's nothing mystical or artistic about Turley. I think he likes the number 19 because it's the smallest odd number that's big enough to make individual Justices inconsequential — to dilute their power to the point where they don't loom large as personalities and seem like mere humans.

Turley's last sentence says it: With 19 Justices, "the power of individual judges is diluted."

June 24, 2012

It was good enough for FDR, and it's what the Washington Post is pushing in anticipation of the Obamacare decision. Jonathan Turley writes:

The health-care decision comes 75 years after the famous “court packing” effort of President Franklin D. Roosevelt.... Roosevelt may have had the right idea for the wrong reason.

Oh, spare me the bullshit. It's the same reason. You don't like the opinions. It was a bad idea then, and it's a bad idea now.

Turley announces that the best number is 19:

How would we get to a court of 19? Gradually. If Congress ordered such an expansion, no president would be allowed to appoint more than two additional justices in a term. Once fully staffed, the court would have a more regular natural turnover....

Just as the philosopher and jurist Jeremy Bentham called for “the greatest good for the greatest number,” sometimes the greatest good can be found in the greater number. When it comes to the Supreme Court, that number may be 19.

If the greatest good is in the greatest number, why not 100? Why not 1000? Why not submit constitutional questions to the entire electorate to get the "greatest" answer?

(Man, that is one of the worst analogies I've ever seen. And even if it were a good as an analogy — that greatest good for the greatest number is like more is better — it would nevertheless depend on one's affection for the utilitarian theory of Jeremy Bentham. Do you want to take constitutional law advice from a Jeremy Bentham fan? Why not save yourself the trouble and throw out the Constitution altogether?)

UPDATE: I have a new post, delving into the reasons for choosing — of all numbers — 19.

Bryan Caplan... says that a child is helped the most if they are in a positive atmosphere.

And if they follow that step, Caplan says, parents can relax — and focus on having even more children. Caplan, who teaches at George Mason University, has three children himself — twin 8-year-olds and an infant.

Children cost far less than most parents pay, because parents overcharge themselves. You can have an independent life and still be an admirable parent. Before you decide against another child, then, you owe it to yourself to reconsider. If your sacrifice is only a fraction of what you originally thought, the kid might be a good deal after all.

"Obama likely needs more than 39 percent of whites to assure re-election. Romney likely needs at least 61 percent of whites to assure Obama’s defeat (or 60.5 in some scenerios). These are estimates based on an electorate that matches the diversity of 2008 or is slightly less white. It presumes the Electoral College outcome does not diverge from the winner of the popular vote (loose talk aside, it’s only happened four times in U.S. history)."

The "white margin to watch"... is that the way we talk now? I find that pretty unpleasant, and it's also odd to be talking with such specificity — 61-39! — while rejecting the powerfully specific mechanism that is the Electoral College. Once you tip to a plurality in a state, it doesn't matter how many white or nonwhite voters go this way or that (except in Maine and Nebraska). So polling that ignores the Electoral College is inherently inaccurate in a close election.

The campaigns are designed around winning the Electoral College. George Bush explained it well, when challenged about his 2000 win that lacked a popular vote majority. (Despite what it says at the link, that interview took place on Dec. 5, 2000.)

You know... had this been an election on who got the most popular votes I suspect we might have had a little different strategy.

Typical Bush humor. Of course, he means he would have had a completely different strategy.

For example, I might have spent more time in my own home state of maximizing the vote here. One of the reasons why the Electoral College is in place, is it forces candidates like me to go and spend time in some of the smaller states that candidates might ignore. And so I-I-you know, I understand the results. But my whole strategy was based on securing enough electoral votes to become the president.

As I wrote in a law review article on the Electoral College (“Electoral College Reform: Déjà Vu,” 95 Northwestern University Law Review 993 (2001)):

In Tahrir Square, where hundreds of thousands had gathered to await the result, the confirmation of Mr. Morsi’s win brought instant, rollicking celebration. Fireworks went up over the crowd, which took up a pulsing, deafening chant: “Morsi! Morsi!”...

But Mr. Morsi’s recognition as president does little to resolve the larger standoff between the generals and the Brotherhood over the balance of power over the institutions of government and the future constitution. Under the generals’ plan, Mr. Morsi, 60, will assume an office stripped of almost all authority under a military-issued interim constitution.

Having dissolved the democratically elected and Brotherhood-led Parliament on the eve of the presidential vote, the generals who seized control after Mr. Mubarak’s ouster abrogated their pledge to hand power by June 30, eliciting charges of a new military coup.

After 84 years as an often outlawed secret society struggling in the prisons and shadows of monarchs and dictators, the Brotherhood is now closer than ever to its dream of building a novel Islamist democracy....

You are the unconventional, free-spirited, manly-dude, who wishes to show the world that you march to the beat of your own Iron John drum circle, even as you not-so-surreptitiously air your junk out in public.

I learned the word "Utilikilt" on October 18, 2010, when Meade and I were "very politely accosted" on State Street (Madison, Wisconsin) by a young man with a spiral notebook who was getting people to write the answer to his question "What is your American dream?" I didn't write in his book, but while Meade was writing — "To live in freedom" — I interviewed him about his project and his attire:

Because I saw the potential for getting men out of shorts (which really are The Dorky)...

.... and he agreed to be photographed...

Photographs at the link...

... and introduced me to the term Utilikilt. There was some talk about its usefulness to, for example, a carpenter.

I observed that it would be a useful defense against plumber's crack (since the back isn't attached to the front beneath the legs, so there's no downward pull when you crouch), and he made the less subtle point that it wasn't good if you had to use a ladder.

We talked to him about his project, and he said he was hitchhiking all over the country — would you pick up a man in a Utilikilt? — getting answers to his question, and naturally he had a website, which I linked to. The website was americandreamorbust.com, but I guess it went bust, because it's not there anymore.

Now, you might say, well, that's part of the American Dream. No safety net. You can win or lose. Free markets! Capitalism! He just lost. And hitchhiker in a Utilikilt soliciting entries to a spiral notebook turned out to be a loser. But he took his shot, and had his day in the sun. There's nothing to cry about.

But here's the mistake I see: He shouldn't have bought his own domain. If he'd gone with americandreamorbust.blogspot.com that website would still be there, and whatever the project was, it would be preserved. He paid to get a more-ambitious-looking URL, but then, he didn't keep it up, and the links that he got now go nowhere.

This is why I stay on Blogger. It seems weaker, perhaps, not to have one's own domain. But I think it's stronger. It's stable. It's a floor of permanence under your project. It's not vulnerable to the winds of change.

Judging from the talk on the convention floor, one would hardly know that they had experienced a huge defeat this month in their effort to recall Wisconsin’s governor, or that they faced lawmakers and voters across the country who have grown increasingly unsympathetic to public sector workers....

At most they're saying, they lost in Wisconsin because they were outspent, says Gary Chaison, a professor of industrial relations at Clark University, but "It would have been much more encouraging if they said, ‘We lost because we are out of touch with the public.’ They don’t understand that in hard times, everyone must sacrifice."

Numerous studies have shown that wages for public sector and private sector workers are not far different. One analysis found that government workers with college degrees tend to have lower wages than private sector workers with similar educations, while those without college degrees tend to do better than their private sector counterparts.

But public employees generally have more generous health and pension plans. In a report this month, the Bureau of Labor Statistics said state and local workers averaged $26.85 in wages an hour, with compensation totaling $41.16 an hour when pensions and other benefits are included.

Designing the pay package like that is a way to keep the public from seeing how generous it is. What happened in Wisconsin was a new transparency. Something most people hadn't noticed became the focal point, as Scott Walker and the GOP legislature selected, for budget cutting purposes, exactly the item that people hadn't really noticed. It wasn't about cutting salaries or firing public workers, so when they protested, they were yelling about something that looked rather lavish to other citizens... which made them sound out of touch and entitled.

“I wouldn’t write off labor unions just yet. Their obituary has been written frequently over the past 70 years,” said Harley Shaiken, a professor of labor studies at the University of California, Berkeley. However, “the status quo for them is untenable,” he said. “Unions will require imaginative, bold leadership going forward.”

But at the convention, AFSCME voted for Lee Saunders as their new president, and he's saying:

“We have to be as politically active as we can possibly be in the 2012 elections at the national, state, local, school district level because there are a lot of people out there who want to hurt this union and who want to hurt you,” he said. “We have to be organized to fight back.”